Articles Posted in Personal Injury

Okay-Bone-240x300Motor vehicle accidents (“MVAs”) are extremely dangerous. An average mid-sized sedan weighs about one-and-a-half tons. Even when moving at relatively low rate of speed, the force of a one-ton collision is enormous. A head on collision is far worse. If a vehicle going 47 mph strikes another vehicle traveling 64 mph, the collision is of a similar magnitude to a vehicle traveling at 111 mph ramming into a concrete barrier. Modern safety features have dramatically reduced the risk of injury in a MVA, but there is little technological innovation can do to offset the impact of a high-speed head-on collision.

Some MVAs cause immediately life-threatening injuries. First responders take the injured directly to a hospital for critical care. However, other incidents may not cause injuries that require the same type of immediate life-saving intervention. The injured party will be offered the option to travel to a hospital in an ambulance, but instead of accepting emergency transport, the individual injured will decline for a number of reasons. He or she might feel embarrassed or ashamed of being in an accident; the cost of the ambulance service will cause financial hardship; the idea of taking an ambulance when not in a life-threatening situation may feel selfish; pride may play into the decision-making process; or the injured person may just not feel like they’ve suffered a severe enough injury to justify that level of attention.

While some of those who decline emergency transport may go directly to the emergency room by other means, many decide to wait and see their primary care physician. Others will not seek medical attention at all, or simply decide that the injury is not severe enough for pay for the office visit, waiting to see if the injury heals on its own. While financial concerns are valid—our system’s fundamental flaw is that seeking medical treatment can end in bankruptcy—it is always wise to see a doctor after an MVA.

Leveraging-300x200Tort law principles will ensure businesses and institutions place safety over efficiency and profits while the country begins to restart economic activity. America’s complex relationship with personal injury lawsuits stokes a collective cognitive dissonance, where our most treasured values are locked in conflict. We hold justice, accountability, and sympathy as individual and cultural ideals. When a community member is injured, whether physically, emotionally, or financially, societal norms dictate communal action, surrounding the suffering individual with comfort and support. On the other side of the same coin, society expects individuals responsible for another’s injury acknowledge their fault and expend proportionate resources to repair the damage done. Personal injury lawsuits advance these ideals, forcing compliance with our cultural values under the authority of the state.

At the same time, self-determination and self-reliance are both elemental components of our nation’s social fabric. For better or worse, we often credit an individual’s circumstances as a function of his or her integrity and fortitude. In the immortal words of Joseph P. Kennedy, “When the going gets tough, the tough get going.” Since the 1970s, insurance companies and corporate interests have waged a war on personal injury law through a process labeled as “tort reform.” Although this article is not intended to dive into that complex subject, tort reform met with some success coloring personal injury lawsuits as the vehicle of the sneaky and weak to obtain untold sums of undeserved money.

In the tort reform era, the role personal injury lawsuits play in advancing public interests is sometimes overlooked. From reigning in overzealous pharmaceutical companies from prematurely introducing new, untested drugs, to holding manufacturers to account for profiting from dangerous consumer goods, tort law has saved Americans from countless injuries and deaths. It is critical for our safety that business interests operate under the threat of litigation to reign in risky commercial gambits.

Dark-Hospital-300x191In the 1990s, the use of a neurovascular stent for a procedure call “stent-assisted coiling” was considered a breakthrough treatment for treating brain aneurysms. The medical device offered a non-surgical method to address weak spots in blood vessels in the brain. An aneurysm occurs when a weak point in a vessel allows blood to bulge out the vessel wall. If the aneurysm bursts, it can cause traumatic consequences, particularly when the aneurysm is located in the brain.

A non-stent assisted coiling treatment for an aneurysm involved running a stint from a patient’s leg up into the location of the aneurysm in the brain. The catheter would then inject a string of soft platinum into the aneurysm, which coils upon itself within the “bubble” of the aneurysm. After the platinum was fully deployed, the blood in the aneurysm clots along the coil and eventually fills the either aneurysm, such that is no longer poses the threat of rupture.

The procedure described above worked well, unless the aneurism had a “wide neck.” Where a normal aneurysm looks like a bubble stuck on the side of the vessel, a wide neck aneurysm looks more like a semi-circle. Instead of having a small weak spot in the vessel bulge out into a bubble, the wide neck variety involves a larger weak spot that expands the vessel in a distorted manner. Introducing the platinum coil into the aneurysm is not feasible, as the coil is too exposed to the blood flow and will not remain in place.

“Yeah, that’s going to be a problem. That’s going to be a problem for them.”

In so few words, Jackie Chiles, legendary consumer rights warrior, issued a battle cry, distilling public safety litigation into its most primal essence. Dangerous products impose a cost upon the consumer. Product liability lawsuits reallocate the cost wChiles-Top-of-Bloghere it belongs: the manufacturer. A dangerous product is a problem, but this time, it will be a problem for them.

This article is the first installment in a series that explores the evolution of personal jurisdiction as it relates to product liability litigation, concluding with a discussion of two personal jurisdiction cases pending before the Supreme Court. In those consolidated cases, Ford Motor Company is asking the Court to severely limit the number of courts that can hear a case against a company that serves a regional or national market.

Lots-of-Guns-300x200I have posted several blogs regarding the legal considerations surrounding firearms. The first post related to the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”), which prohibits lawsuits against gun manufacturers and dealers, except under very limited circumstances. I also wrote about the surviving families of the Sandy Hook massacre’s lawsuit against Remington Arms Co., under PLCAA, based upon violation of a state consumer protection law. More recently, I wrote about the City of Kansas City’s lawsuit against a gun manufacturer, Jiménez Arms, and several gun dealers arising out of a gun trafficking ring. This blog explores that trafficking ring, how it worked, and what damage it caused before it collapsed with the arrest of the main perpetrator, James Samuels, on October 4, 2018.

Samuels, a captain with the Kansas City fire department illegally traded in arms from 2013 to 2018. Domestic gun traffickers usually sell to two types of clients. First, they sell firearms to “prohibited persons,” which are individuals restricted from owning or possession a firearm. Under federal law, anyone convicted of a felony is permanently banned from owning or possessing a gun. This leads to the second reason gun traffickers exist. The guns they sell will not be traceable to the purchaser, as the transaction is not recorded. Much of the time, the gun has been reported stolen, so it has no owner. A felon that wants to have a firearm can buy that gun from a trafficker, and when if it is used in the commission of crime, it can be disposed of without concern of being identified through its registration.

On November 22, 2013, Samuels placed a call to Jiménez Arms, a gun manufacturer with the reputation for building very cheap pistols, ideal for disposal after committing a crime. He told the company contact that he was a firefighter but worked part-time at Conceal & Carry (C&C), a gun dealer in Kansas City. The manufacturer received confirmation from C&C that Samuels in-fact worked for the dealer. As a consequence, it gave Samuels permission to purchase guns.

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As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

pistol-and-bullets-300x200In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”)into effect. The PLCAA prevents gun manufacturers and dealers from being sued in relationship to the production and/or sale of firearms, subject to a few exceptions. Historically, these exceptions have been construed narrowly, and as a consequence, manufacturers and dealers have been immune to most types of lawsuits.

The PLCAA permits certain commercial suits, such as a contractual dispute or a claim for breach of warranty. § 7903(5)(A)(iv). Further, immunity does not extend to the defective design or manufacture of a firearm. § 7903(5)(A)(v). Gun manufacturers are subject to the same rules as any other manufacturer of consumer goods. If a manufacturer places a firearm into the stream of commerce which malfunctions due to defective parts or improper assembly, or if it was designed in a dangerous manner and poses an unreasonable danger when operated, the manufacturer can be held liable for resulting injury.

Other exceptions apply when dealers provide firearms to people who should not have one in their possession. One such exception involves negligent entrustment. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as the act of supplying a firearm to someone the seller knew, or should have known, would likely injure others with the gun. § 7903(5)(B). Similarly, if a dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, the dealer is susceptible to suit. § 7903(5)(A)(i).

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photo credit: Shutterstock.com/Nirat.pix

In a recent Michigan slip-and-fall case, a state appellate court considered whether a plaintiff’s amended complaint adding a nonparty at fault relates back to the original filing. Ultimately, the court concluded that the plaintiff’s amended complaint did relate back to the original filing date of the complaint. Thus, the court rejected the defendant’s argument that the plaintiff’s case was time-barred.

According to the court’s opinion, the plaintiff purchased a new refrigerator at Best Buy. Evidently, the plaintiff’s new refrigerator unexpectedly sprayed water out of its dispenser onto the floor, causing the plaintiff to slip and fall. The plaintiff filed a claim against Best Buy, which sold and installed the plaintiff’s fridge, alleging negligence, breach of warranty, and breach of contract. Best Buy filed a notice identifying Samsung as a nonparty at fault, as the fridge’s manufacturer. Essentially, Best Buy was claiming that Samsung should be a party to the lawsuit because Samsung was likely at fault for the plaintiff’s injuries. The plaintiff then amended her complaint, adding a claim against Samsung.

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Photo Credit: BLACKWHITEPAILYN / Shutterstock.com

There are some sports that are known to have a significant risk of injury, such as skiing or rock climbing. Under the tort law theory of inherent risk, people who voluntarily engage in these sports cannot hold anyone else accountable for injuries caused by the sport itself unless the negligence rises to a certain level. In other words, if you go skiing and break your leg, unless the owners of the ski resort were extremely negligent, you will probably not be able to sue them for damages. Without this heightened negligence standard for inherent risk, no ski resorts could operate because the costs would be prohibitive.

Facts of This Case

In a procedurally complicated opinion, the Michigan Court of Appeals attempted to clarify whether the “parked vehicle exception” applied to injury during maintenance of the vehicle. In order to collect damages from an automobile insurer, the vehicle must be involved in the injury. This may seem straightforward and obvious, but as often happens with the law, it is not. Michigan law appears to hold that auto insurers do not have to pay for injuries when the vehicle is parked. However, the law also seems to say that insurance will cover injuries that occur during vehicle maintenance. This case looks at these potentially contradictory aspects of the law and discusses how the law should be applied in the instant case and cases with similar facts. While a case may seem simple at first, that is not always the reality. That is why if you are injured in any kind of accident, you should consult an experienced Michigan personal injury attorney as soon as possible. They can help frame and guide your case in a way that leads to the best results.

Facts of the Case

Both parties agreed on the basic facts of the case. A woman was using the vehicle provided by her employer. She stopped at a self-serve carwash to wash it, and as she was washing it she slipped and fell on ice. No one knows whether the ice was created by the water she was using to wash the vehicle, or if it was already on the ground. She attempted to recover damages from the insurer her employer used. It refused to pay for the injuries. The insurance company argued that the case should be dismissed because the injury just happened to occur near the employer’s car and the law excepts insurers from being responsible for accidents when the car is parked. Conversely, the injured party argued that since her injuries occurred during the maintenance of the car, under statutory and case law she is still entitled to payment from the insurance company. The insurance company moved for summary judgment, which would dismiss the case. The court found for the plaintiff and allowed the case to continue for the reasons explained below.

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